The President’s Contribution – The Current Rule
It is said in Harrison’s Law and Conduct of the Legal Profession in Queensland (2nd Edition, 1984, Williams J, Ed.) at p.59, that:
“The basic principle of justice in relation to criminal law is that an accused person is innocent until proved guilty. Further, to a large extent a person is not obliged to incriminate himself. In consequence of those basic principles there are some special rules which govern the conduct of counsel in relation to criminal matters. For example, defence counsel has no duty to advise his client to disclose a previous conviction. If the court is being led by the prosecution to believe that an accused has no previous convictions, defence counsel is under no duty to disclose facts to the contrary which are known to him, nor correct any information given by the prosecution if such disclosure or correction would be to his client’s detriment. But defence counsel must take care not to lend himself to any assertion that his client has no convictions, or to ask a prosecution witness whether there are previous convictions against his client in the hope that he will receive a negative answer. The Bar Association of Queensland has expressly ruled that such principle also applies to bail applications (ruling of 24th September, 1974).”
The issue is now a subject of statutory regulation. Rules 31 and 32 of the Legal Profession (Barristers) Rule 2004 provide:
31. A barrister will not have made a misleading statement to a court simply by failing to disclose facts known to the barrister concerning the client’s character or past, when the barrister makes other statements concerning those matters to the court, and those statements are not themselves misleading.
32. A barrister who knows or suspects that the prosecution is unaware of the client’s previous conviction must not ask a prosecution witness whether there are previous convictions, in the hope of a negative answer.
Of course, the Rules are not a complete code and do not govern every possible fact situation. If, after checking any possibly applicable rules, counsel is unsure of the appropriate course in a particular situation, counsel may contact the office of the Association for referral to a senior member of the Council for advice.
Martin Daubney SC
The Chief Justice’s Contribution – The Rule Requires Revision
A
t the Bar Conference, the important question arose whether defence counsel could ethically sit by, and see a Judge sentence on the basis, for argument’s sake, the convicted offender had no prior criminal history — as represented by the prosecutor, whereas defence counsel knew he did have a relevant prior record. I expressed my concern counsel would thereby breach his or her duty to the court.
At the time I was unaware the Bar Rules deal expressly with such a case, sanctioning reticence in the defence.
I now raise whether that rule sits comfortably with reasonable contemporary expectations of counsel. There is substantial justification for maintenance of the current defence position pre conviction. But once a conviction is recorded, should a duty to the community cut in, in a way which diminishes a strictly adversarial approach?
It is unacceptable to think of a Judge, through prosecution error, sentencing on a palpably false basis. Where defence counsel knows that, should his or her duty to the court oblige counsel to correct the error? Of course, should the error become apparent, the court may have power to reopen under the Penalties and Sentences Act. But is it right to see counsel, in effect, sitting by against the possibility the error may not emerge?
The content of ethical obligations is influenced, and sometimes moulded, by current expectations so far as they may reliably be gauged, although they should not necessarily dictate an outcome. I feel the community may be surprised by the position currently enshrined in the Bar Rules. The community assumes Judges sentence on a proper appreciation of all relevant circumstances. That is indeed one of the supports by which we advocate preservation of the comparatively unfettered sentencing discretion.
I invite some debate on the subject, and for that, Hearsay provides a convenient forum.
The Hon Paul de Jersey AC
Chief Justice
Robert Mulholland QC’s Contribution – The Rule Does Not Require Revision
It is an important part of counsel’s duty of candour to the court not to deliberately mislead the court on any issue. Indeed, misleading conduct may in certain circumstances constitute a criminal offence (eg Hatty v Pilkington). Apart from any ethical rule, there are obligations of disclosure arising from the common law and under statute. It is necessary, however, to keep in mind that the rules operate in a litigation (adversarial) context and, in the case of criminal proceedings, the fundamental proposition is that the process is accusatorial and the prosecution bears the burden of proving the guilt of the accused beyond reasonable doubt. A corollary of this is that the lack of defence evidence cannot be used to fill in any gaps in the prosecution case. Nor can an accused person generally be expected to give evidence at trial. In this respect, a criminal trial differs radically from a civil proceeding. The High Court reminded us of these propositions in Azzopardi.
Fortunately, we do not live in a totalitarian state such as the Bulgarian lawyer, who in the days of the Cold War, began his defence in a treason trial by noting:
“In a socialist state there is no division of duty between the judge, prosecutor and defence counsel … The defence must assist the prosecution to find the objective truth in a case.”
In that case the defence lawyer ridiculed his client’s defence and the client was convicted and executed. Sometime later the verdict was found to have been erroneous and the defendant was “rehabilitated”!
Closer to home, we are all familiar with Tuckiar’s case where counsel disclosed the privileged confidential communications of his client out of feelings for the deceased constable and his reputation. Rightly or wrongly, on the view defence counsel took of what his client had told him, the court was in danger of being misled. Emphatically rejecting counsel’s chosen course of action, the High Court said:
“Why he should have conceived himself to have been in so great a predicament, it is not easy for those experienced in advocacy to understand. He had a plain duty, both to his client and to the Court, to press such rational considerations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only … Whether [the accused] be in fact guilty or not, [he] is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted. The subsequent action of … counsel in openly disclosing the privileged communications of his client and acknowledging the correctness of the more serious testimony against him is wholly indefensible. It was his paramount duty to respect the privilege attaching to the communication made to him as counsel, a duty the obligation of which was by no means weakened by the character of his client, or the moment at which he chose to make the disclosure. … He was not entitled to divulge what he had learnt from the [accused] as his counsel. Our system of administering justice necessarily imposes upon those who practice advocacy duties which have no analogies, and the system cannot dispense with their strict observance.”
As Lord Diplock bluntly observed in Saif Ali v. Sydney Mitchell and Co:
“To say of a barrister that he owes a duty to the court, or to justice as an abstraction, to act in a particular way in particular circumstances may seem to be no more than a pretentious way of saying that when a barrister is taking part in litigation he must observes the rules; and this is true of all who practise any profession. The rules which may appear to conflict with the interests of the client are simple to state, although their application in borderline cases may call for a degree of sophistry not readily appreciated by the lay client, particularly one who is a defendant in a criminal trial. A barrister must not wilfully mislead the court as to the law nor may he actively mislead the court as to the facts; although, consistently with the rule that the prosecution must prove its case, he may passively stand by and watch the court being misled by reason of its failure to ascertain the facts that are within the barrister’s knowledge.”
The sentencing process is also adversarial in nature (the merits or otherwise of which can be left for another time) even though, on a plea of guilty or finding of guilt after trial, all issues essential to guilt are no longer in dispute. In many cases the defence will choose not to challenge the facts and antecedents presented by the prosecution. On the other hand, it may choose to explain why the client acted in a particular way or highlight favourable aspects of the material. In some cases the prosecution and defence may reach an understanding about the significant facts while recognising that the court is not restricted by any understanding between counsel. Infrequently, evidence may be called and cross examined upon. Where an allegation of fact is not admitted or is challenged, the court may act upon it if satisfied on the balance of probabilities it is true, the degree of satisfaction varying according to the consequences adverse to the accused of such finding. Throughout this process the defence is constantly readjusting its position depending on what the prosecution chooses to refer to.
The basic reason for defence counsel not being compelled to correct a prosecutor’s innocent or negligent oversight in relation to criminal convictions is that, as with any fact or information concerning the client’s character or past, it is not incumbent on defence counsel to say anything. Put another way, counsel may take advantage of the prosecutor’s mistake provided nothing positive is done to place reliance on something known to be false. From the standpoint of principle, it is consistent with counsel continuing to represent a client after having received an admission of the client’s guilt and pressing every rational argument in favour of an acquittal based on the insufficiency of the prosecution evidence, without entering forbidden territory by cross examination, evidence or argument suggesting the client is innocent or that someone else was responsible for the offence. In each case the court may be misled in the sense that it may reach a conclusion that it might not otherwise have reached on a view of the facts that counsel knows to be false. However, accusing counsel of misconduct or impropriety for that result is to misapprehend counsel’s proper role and the framework of proof within which counsel operates.
This does not mean that non-disclosure is usually, or ever, in the client’s best interests. First, the court, whether or not differently constituted, may reopen the sentencing proceedings in certain circumstances, including if a court has imposed a sentence decided on a clear factual error of substance (PSA, s 188). Arguably, an erroneous view as to a person’s criminal history might, if discovered later, trigger this provision. Secondly, to volunteer convictions not referred to by the prosecutor may win leniency for frankness. Thirdly, to remain unresponsive in the face of a specific inquiry by the court will almost certainly result in the court adjourning the sentence for the matter to be checked, at the probable detriment to the client and counsel’s own credibility. In short, it may be tactically and strategically unsound for the client to be advised to follow the course envisaged in the rule. But in the final analysis it is the client’s decision whether or not to take advantage of the prosecutor’s omission.
In my view, any change in the present rule would result in a substantial change in counsel’s traditional relationship with a client facing a criminal charge. It would not be sufficient to merely impose on counsel a duty to disclose known convictions that were not revealed by the prosecution, because defence lawyers could avoid this obligation by not seeking any information from clients on prior convictions. Further, requiring counsel to make an extended inquiry would then raise further questions concerning the lengths to which counsel should go to ascertain the truth, in an area where instructions are often unreliable. And, if disclosure is to be mandated on sentence, why not at trial where it is always likely that defence counsel will know more than the prosecutor about the accused’s past. Indeed, logically, why not extend the obligation to any fact material to the question of guilt. Yet it is submitted that this is the extreme position to which one is driven if an obligation of disclosure is imposed on counsel in regard to the client’s character or past. Maintenance of the ethical rule, on the other hand, affirms the accusatorial nature of the criminal process and recognises that advocacy duties have “no analogies”.
Revision of the rule is neither justified nor required.
Robert Mulholland QC
Darin Honchin’s Contribution – The Rule Does Not Require Modification
I agree that there is no need to review or modify the rule. The fundamental reasons for such a rule have already been expressed and there has been no case shown to suggest that the fundamental tenants have been undermined or are simply no longer applicable. But I would add that there will seldom be a time when defence cousnel can be absolutely certain of the client’s criminal record in any event. If one relies simply upon what the client says then it is more than likely the Court will be misled. Clients are notoriously unhelpful and inaccurate about their histories (criminal or otherwise). Often they will tell you they have no history – not because they are deliberately lying, but because they remember the Magistrate saying “Convicted but no conviction is recorded”. Many simply take that as “No conviction” and are surprised to find it still on their criminal histories.
Counsel, as far as I can see, take their role and responsibilities to the Court and client and other very seriously. The obligation not to mislead, is concomminant with the rule that the bench will not ask (ie don’t ask don’t tell). If the Chief Justice is concerned with the application of the rule, His Honour would be fully entitled to simply ask from the Bench – “Mr X, does your client have a criminal history?”. The obligations that fall upon Counsel are then clear (though one may start to query what a ‘criminal history’ really is).
Darin Honchin
Christian Jennings’ Contribution – The English Position
The following is the advice published by the UK Bar Council’s Professional Standards Committee. I think it adds something to this debate:
“DUTY TO DISCLOSE PREVIOUS CONVICTIONS
Counsel has an overriding duty to the Court to ensure in the public interest that the proper and efficient administration of justice is achieved; he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court. For example, where the Court and prosecution are misled as to the existence of previous convictions as a result of the conduct of the defendant, in providing false information as to his identity, Counsel would be associating himself with the deception if he continued to act in the knowledge of that fact and the client declined to indicate his true identity to the Court.
The Professional Standards Committee has been asked for further guidance about counsel’s professional duty to reveal the existence of convictions of which the Court and prosecution are unaware in circumstances other than those described above. The Professional Standards Committee gives the following guidance:
The Professional Standards Committee has concluded that counsel is not under a duty to reveal previous convictions to the prosecution or the court, but nor should counsel withdraw if his client refuses to reveal the convictions. In circumstances where counsel is aware of previous convictions, regardless of the nature of the case or potential sentence, counsel should give the defendant clear advice as to all the options. He should:
⢠Inform the defendant that the information as to the previous conviction will remain confidential unless the client specifically waives privilege;
⢠Inform the defendant that whilst the information remains confidential, he will be restricted in what he can say in mitigation;
⢠Advise the defendant that nothing can be said as to the defendant’s record which expressly or impliedly adopts the position as outlined by the prosecution and in particular, that nothing can be said as to:
(a) the absence of convictions of the type or gravity of the undisclosed conviction;
(b) a period of time as being free from convictions if the undisclosed conviction occurred during that period;
(c) the absence of a particular sentence or disposal in the defendant’s antecedents if such sentence or disposal was in fact imposed in respect of the undisclosed conviction; or
(d) an apparently good character of the defendant.
⢠Specifically advise the defendant as to the nature of the sentencing exercise if the court became aware of the undisclosed conviction, whether by virtue of the defendant’s voluntary disclosure or by some other means.
…
⢠Advise the defendant as to the possibility of the prosecution subsequently discovering the undisclosed conviction;
⢠Advise of the real possibility that failure of counsel to refer to the defendant’s antecedents would not go unnoticed by experienced prosecution counsel or judge. This could lead to an adjournment, to the matter being relisted for alteration of the sentence, or to a reference by the Attorney General … .
⢠Advise that so long as the conviction remains undiscovered, the mandatory sentencing provisions will not operate, but that if any of the above events occur, sentencing will take place in accordance with those revisions.
The defendant should be told that the choice as to what course to adopt is his, but that if he decides to reveal the qualifying conviction, he would be entitled to expect significant credit from the court in fixing the specified period.
If counsel is in any doubt as to the action he needs to take, he should contact the Professional Conduct and Complaints Committee for advice.”
Christian Jennings
